Park Health Ctr. v Country-Wide Ins. Co. (2003 NY Slip Op 51529(U))

Civil Court Of The City Of New York, Queens County

Index No. 26244/97

BERNICE D. SIEGAL, J.

The defendant insurer brings the instant motion to for summary judgment dismissing the complaint in the within action to recover payments claimed due for medical services allegedly rendered under No-Fault upon several grounds, including, inter alia, that the complaint was improperly verified by a signature falsely purporting to be that of plaintiff’s attorney; failure to state a cause of action; frivolous obstruction with the discovery phase; and that the individual physicians named as party plaintiffs herein did not authorize counsel nor plaintiff Park Health Center ( hereinafter Park Health) to institute this action in their behalf.

Procedural History

The within action, naming Park Health, its principal Dr. Jamil Abraham, and Drs. Michael Schur, Myong Choi, Robert Stoessel, Robert R. Ceglio, Ira Casson and Leonard Koven as plaintiffs, was commenced on May 27, 1997 by summons and verified complaint comprised of 54 separate causes of action, to recover claimed unpaid No-fault benefits for services allegedly provided by the named plaintiffs for injuries sustained by five assignors and arising out of separate accidents. Issue was joined by defendant’s answer on June 30, 1997.

The matter was assigned to this court on June 14, 2002 when, at conference, defendant raised issues as to whether one of the named claimants, Dr. Leonard Koven was, in fact, deceased, and whether two of the other named claimants had authorized plaintiffs’ counsel to bring the action on their behalf.

Subsequently, on September 13, 2002, defendant moved to dismiss the complaint and for [*2]the imposition of sanctions against plaintiffs’ attorney, Amos Weinberg, and plaintiffs Park Health and Dr. Jamil Abraham pursuant to 22 NYCRR § 130-1.1. On that date, the parties stipulated that the branch of the motion to dismiss was withdrawn without prejudice to renewal upon completion of discovery, that depositions of Drs. Abraham, Casson, Schur and Choi would be held by November 26, 2002, that the claims of Drs. Abraham, Casson, Schur and Choi would be severed from the other claims and that the claims of Dr. Koven would be discontinued without prejudice. The court, also on said date, set the defendant’s motion for the imposition of sanctions down for a hearing on October 18, 2002.

On October 18, 2002, the court reinstated the claims of Dr. Koven, in view of the fact that the court had not had jurisdiction to discontinue his claims as this particular plaintiff had filed for bankruptcy and a substitution of the trustee in bankruptcy as a party plaintiff was required. On the hearing date, plaintiffs’ attorney, Amos Weinberg, failed to appear and, as per decision and order dated November 6, 2002 and for the reasons set forth therein, was found to be in civil contempt by the court. The sanctions hearing was continued to November 15, 2002, upon which date the court was to determine Mr. Weinberg’s punishment. As Amos Weinberg appeared and testified at the continued sanctions hearing on November 15th, the court found his contempt to be purged, although imposing a fine of $250 for his failure to appear at the October 18th hearing. At the hearing, the trustee in bankruptcy, Neil Ackerman, was substituted for Dr. Koven. Also, at the November 15th proceeding, plaintiff Park Health conceded that it did not specifically assert any cause of action in the within complaint. The hearing was continued to February 24 2003, at which time, defendant brought the instant motion and the court heard oral argument thereon.

The matter was then further adjourned to June 24, 2003 for continuation of the sanctions hearing and pending decision on the instant motion.

Findings of Fact and Conclusions of Law

As the court has noted above, plaintiff Park Health Center has conceded it has not asserted any cause of action in the within complaint and the causes of action pertaining to the claims of Drs. Koven, Ceglio and Stoessel have been severed from the within action. The court further notes that as per stipulation dated July 12, 2002, those causes of action asserted ( as set forth in the within complaint) by Dr. Ceglio have been discontinued with prejudice. Therefore, the instant motion is solely concerned with, and the court need only address, the causes of action allegedly asserted by plaintiffs Drs. Abraham, Casson, Schur and Choi.

Defendant is moving for dismissal of the remaining causes of action on several grounds, first among them being defendant’s assertion that plaintiffs’ attorney, Amos Weinberg, did not himself sign the verified complaint and other papers in the within action and that, therefore, the complaint must be deemed a nullity and dismissed.

With respect to this ground, the verification of a pleading must be signed by the [*3]attorney purportedly verifying it; not by a printed name or rubber stamp, but by the attorney’s own signature (see Security Pacific National Trust Company -v- Cuevas 176 Misc 2nd 846, 849; Sandymark Realty Corp. -v- Creswell 67 Misc 2nd 630). In the matter at bar, Amos Weinberg admitted at the November 15, 2002 sanctions hearing that he himself did not sign the verification, but rather one of his secretaries did. Undoubtedly, therefore, the verification was defective. Section 3022 of the CPLR provides that ” [a] defectively verified pleading shall be treated as an unverified pleading. Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects to do so.” In this case, the court finds that defendant was made aware of the defective ( insofar as it was not, in fact, signed by the affiant attorney) verified complaint upon Weinberg’s testimony at the November 15th hearing. However, as there is no indication on the record that defendant elected to treat the complaint as a nullity until service of the instant notice of motion on January 24, 2003- approximately two months later, defendant has failed to show the required due diligence ( see Colon -v- Vacco 242 AD 2nd 973). Even assuming arguendo that defendant acted more expeditiously in rejecting the “verified” complaint, defendant has not shown any legal basis that the complaint in the within No-Fault action was required to be verified.

Accordingly, while Amos Weinberg’s conduct regarding his alleged signing of the verification and other papers herein cannot be excused and may well be sanctionable, that branch of the within motion for dismissal is denied.

However, the same is not true for failure to sign an affirmation holographically. An unsigned affirmation is of no force and effect ( American Security Insurance Company -v- Austin 110 AD 2nd 697). It follows that an affirmation not properly subscribed is a nullity ( Macri -v- St. Agnes Cemetary 44 Misc 2nd 702).The rule permitting affirmations by attorneys rather than sworn-to statements before a notary was promulgated in 1966 ” to simplify the attorney’s practice”( Id.). Attorney Weinberg has pushed this permissive rule too far in authorizing someone else to subscribe his affirmation. Therefore, any affirmation not holographically subscribed by him shall be deemed a nullity and not considered by the court.

Defendant is also moving for dismissal of those causes of action pertaining to plaintiffs Drs. Schur, Casson and Choi upon the ground that none of the aforementioned claimants authorized counsel ( Amos Weinberg) to commence this action on their behalf. With respect to this branch of the motion, where the authority of an attorney to appear on a party’s behalf has been questioned, the burden falls upon the attorney asserting his or her authority to prove same ( NRK Management Corp. -v- Donahue 109 Misc 2nd 601) and ” where an attorney’s authority has been questioned, [ it is important that] proof of that authority be given. Otherwise, a party may later demonstrate that the attorney who purported to represent him had no authority to do so …”( NRK Management, supra, at 603). Furthermore, it has been held that where a plaintiff has not authorized an attorney purportedly appearing for him to commence an action, the complaint is subject to dismissal ( Ulanoff -v- Croyden Shirt Co., Inc. 14 Misc 2nd 13, aff’d 12 AD 2nd 508, app den’d 9 NY 2nd 650). [*4]

In this regard, proof has been offered by defendant, in the form of Weinberg’s November 15th hearing testimony, evincing his lack of authorization to commence the within action on behalf of Drs. Choi, Schur and Casson. Weinberg testified that he had never met any of these plaintiffs, had never spoken to any of them, had never attempted to personally contact them, nor has his office ever tried to make contact in any manner with them. Also, he presented no documents in his files indicating he was so authorized by these plaintiffs to bring this action in their names. Furthermore, when asked if he ever had an agreement with any of these individuals with respect to his representing them, Weinberg responded that he assumed he was authorized to do so. Defendant, therefore, has made a prima facie showing of Amos Weinberg’s lack of authority. With the burden of proof now shifting to Amos Weinberg, no evidence has been presented in support of his authority to commence any claim herein on behalf of Dr. Choi. With respect to Dr. Casson and Dr. Schur, plaintiffs submitted, as evidentiary support, signed and notarized letters dated August 2, 2002 authorizing Weinberg to pursue collections of money on their behalf. Taken on face value, the authorizations permit Weinberg to pursue monetary collections on behalf of these doctors beginning August 2, 2002. However, the record remains void of any evidence that Weinberg was authorized to bring suit in the names of Drs. Casson and Schur when the action was commenced in May, 1997. Not only do these authorizations fail to establish permission to commence this action in May, 1997, they fail to prove that Amos Weinberg was even known to these plaintiffs in 1997. Such proof is insufficient to defeat this branch of defendant’s motion for summary judgment to dismiss. If such authorizations existed in May, 1997, it was imperative that Weinberg come forth with same, which he has failed to do.

Significantly, even if the court were to overlook the apparent lack of authorization in 1997, the documents purported to authorize both Dr. Abraham and Mr. Weinberg as collection agents for Drs. Casson and Schur are not properly before the Court. These statements were appended to two affirmations, dated August 20, 2002 and January 28, 2003, submitted by Attorney Weinberg, which due to his failure to properly subscribe the affirmations, are not being considered by this court.

Accordingly, the branch of the motion for summary judgment for dismissal of the causes of action herein pertaining to Drs. Choi, Casson and Schur on the ground of counsel’s lack of authority to institute the causes of action on behalf of these plaintiffs is granted; and the causes of action pertaining to plaintiffs Dr. Choi, Dr. Casson and Dr. Schur are dismissed.

With respect to the ten remaining causes of action asserted by plaintiff Dr. Abraham, defendant has moved for dismissal, pursuant to CPLR § 3126(3), upon the ground of the willful obstruction of discovery. Defendant specifically contends that Dr. Abraham had an employee of his, Lionel Bhadai, testify on his behalf at a March, 2000 deposition in which Bhadai testified under oath that Dr, Koven was at that time a medical provider at Park Health, despite the fact that Dr. Koven had filed for bankruptcy in April, 1997 and had died in November, 1998. As to this ground, a complaint may be dismissed where there is a ” clear showing that the failure to comply with discovery demands is willful, contumacious and in bad faith” ( Yona -v- Beth Israel Medical Center [*5]285 AD 2nd 460, 461; see also Brown -v- Michelin Tire Corp. 204 AD 2nd 255). Dr. Abraham admitted at the November 15th hearing that he became aware of Dr. Koven’s bankruptcy and subsequent death when served with the bankruptcy notice sometime in 1998. However, he attempts to excuse Bhadai’s clearly erroneous deposition testimony on the basis that Bhadai was merely negligent in assuming facts on matters of which he had no clear knowledge. Given that Dr. Abraham conceded at the November 15th hearing that while he selected Bhadai to testify at the deposition, he-Dr. Abraham- would have been the best person to testify. While the court finds that Bhadai himself may have only been negligent, plaintiff Dr. Abraham’s conduct in this regard, which had the effect of hiding from defendant the fact of a claimant’s death and, at the time the action was commenced- the filing of bankruptcy, was willful conduct, done in bad faith, attributable to plaintiff Dr. Abraham. Furthermore, a court’s striking of a pleading has been upheld where a party has “supplied false and fraudulent information”, as Dr. Abraham implicitly did with regard to Dr. Koven,s bankruptcy and subsequent death ( see Garnett -v- Hudson Rent A Car 258 AD 2nd 559). Additionally, in light of the above, Dr. Abraham, as the self-appointed collections agent for the other purported claimants herein, by his contumacious conduct infected the entire case brought before the court.

Accordingly, that branch of the motion for summary judgment to dismiss, upon the foregoing ground, the causes of action asserted by plaintiff Dr. Abraham, is granted and those causes of action are dismissed.

Date Judge, Civil Court

Decision Date: June 30, 2003